Judges in Pennsylvania are required to consider sixteen factors when deciding the custody schedule that is in the best interest of a child. These relevant factors are listed in 23 Pa. C.S. §5328(a). All of the factors “which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being” are said to be important in deciding who should have custody and visitation rights. The Court must give weighted consideration to those factors which affect the safety of the child.”

What happens when a parent is in prison? In the case of Etter v. Rose, 454 PA.Super. 138 (1996), the Superior Court outlined additional considerations to be evaluated when a parent is incarcerated. They include: (1) age of the child; (2) distance and hardship to the child in traveling to the visitation site; (3) the type of supervision at the visit; (4) identification of the person(s) transporting the child and by what means; (5) the effect on the child both physically and emotionally; (6) whether the parent has and does exhibit a genuine interest in the child; and (7) whether reasonable contacts were maintained in the past.

The Pennsylvania Supreme Court, in D.R.C. v. J.A.Z., 612 Pa. 519 (2011) added that the type of crime committed by the parent is relevant to the best interest of the child when deciding custody. By statute, a parent must report whether they (or any other adult in their household) have committed a criminal offense if they are seeking a custody order. While it may be a red flag warranting the attention of the Court, a conviction does not automatically prohibit visitation – even if it has resulted in the incarceration of the parent.

Most recently, in the case of M.G. v. L.D., decided on February 8, 2017, the Superior Court confirmed that the nature of the criminal conduct that led to the parent’s incarceration should be considered when determining the child’s best interest. The M.G. v. L.D. court evaluated the incarcerated mother’s crime (shooting the child’s other parent) as well as her other behaviors in deciding whether she should have telephone contact, written correspondence or visitation with her daughter. Even though fundamental parental rights are protected by the First and Fourteenth Amendments to the Constitution, the child’s best interest should be of paramount concern to the Court. Incarceration, in and of itself, does not prevent a parent from seeing a child, but visitation must be adjusted to account for the unavailability of the parent. If you want to learn more about custody and visitation rights of parents, whether incarcerated or free, consult with an experienced family law attorney at the Mazza Law Group, P.C.

The most important, first step is to learn whether you have “standing” to request grandparent custody. “Standing” means the legal right to ask the court for custody. Informally, think of it as “getting your foot in the door” to get “a bite at the apple.” It is only possible to seek custody of grandchildren under certain circumstances, which are outlined in 23 Pa.C.S.5324. In general, a grandparent must be taking care of the child (in loco parentis) or desire be the grandchild’s primary custodian due to the parents’ failure or inability to perform their duties. The final step is always to prove that it is in the child’s best interest to live primarily with a grandparent. In an article that we previously published entitled “Do you have custody of your grandchild?” we explained the legal steps that you need to take to get custody of your grandchildren.

The law also describes when a grandparent has “standing” to ask for “partial custody,” or visitation, with a grandchild. 23 Pa. C.S.A. 5325. The law as currently written says that a grandparent can request a court-ordered visitation schedule under certain conditions, including:

1) where a parent is deceased;

2) where the parents have been separated for at least six months or have initiated and continued divorce proceedings (emphasis added); or

3) where the child lived with the grandparent for at least twelve consecutive months and is removed from the grandparent’s home by a parent.

Now, however, the first clause of paragraph two has been disallowed by the Pennsylvania Supreme Court. In the case of D.P. v. G.J.P., 25 WAP 2015, decided September 9, 2016, the Court ruled that it is unconstitutional to allow grandparents to seek partial custody solely because the parents “have been separated for at least six months.”

The parents in the D.P v. G.J.P. case won the legal argument that their separation should not be enough to give the grandparents “standing” to ask for partial custody. The Supreme Court agreed with the parents and said this section of the law violated parents’ fundamental, constitutional rights and cannot be used to ask the Court to award the grandparents’ custody. The entire opinion can be read here:

Under the Fourteenth Amendment, parents have what the courts call a “fundamental liberty interest in raising their children as they see fit.” This includes the right to decide whether the grandparents should have regular visitation with their children. It is assumed that parents act in their children’s best interests, and this fact does not change when parents decide to separate.

Courts in Pennsylvania may no longer intervene to order grandparent visitation just because the parents have been separated for six months. For now, unless and until the law is re-written, it is still possible for a grandparent to seek visitation rights through the Court. It can only happen under paragraphs one and three of the law, when there is a deceased parent, or when the grandparents have had custody for a year and the child returned to the parent’s care. It is now unconstitutional to infringe on a parent’s rights and give a grandparent partial custody solely because of the breakup of the parents.

If you are a parent or a grandparent who wants to know more about the Grandparent Custody Act and how the Constitution can affect family law, talk to an attorney at the Mazza Law Group for legal information and advice.

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